Filed 6/26/26 Lord v. Bell Sports CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JOHN SIDNEY DAVENPORT LORD, H052707
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. 19CV03591)
v.
BELL SPORTS INC.,
Defendant and Respondent.
On January 12, 2018, appellant John Sidney Davenport Lord sustained serious
injuries, including traumatic brain injuries, after the bicycle he was riding fell sideways.
There were no witnesses, and details concerning the accident remain unknown. At the time,
Lord was wearing a bicycle helmet manufactured by Bell Sports Inc. (Bell). Lord brought
this products liability action against Bell, claiming that the helmet was defectively designed
and that the defect contributed to his injuries. The jury returned a verdict in favor of Bell.
The trial court entered judgment on the verdict on August 9, 2024. Thereafter, Lord
filed a motion for new trial pursuant to section 657 of the Code of Civil Procedure,1 and a
motion for judgment notwithstanding the verdict (JNOV) pursuant to section 629,
subdivision (a). The court denied both motions, and Lord’s appeal followed.
1
All further statutory references are to the Code of Civil Procedure unless otherwise
stated.
The sole issue on appeal concerns the trial court’s response to a question posed by
the jury during its deliberations. The jury asked for clarification about a question
(“Question 3”) contained in the special verdict form. Question 3 of the form read in part:
“Did the benefits of the helmet’s design outweigh the risks of the design?” The instructions
for the verdict form were that if the jury answered Question 3, “Yes,” it should sign and
return the form without addressing Bell’s potential liability for Lord’s injuries and damages.
The jury’s query to the court during deliberations read in part: “[W]hat should a juror do if
they feel the answer to question number 3 [of the verdict form] is yes, but Bell still has some
liability? As the answer form is written, that is not possible.”
The trial court heard argument from counsel concerning the appropriate response to
the jury’s question. Lord’s counsel argued that because the jury’s query indicated confusion
about the risk-benefit test in a strict liability case, the court should reread the jury instruction
concerning this test, namely, Judicial Council’s California Civil Jury Instruction (CACI) No.
1204. Bell’s counsel opposed this approach, and the court rejected it. Instead, the court
responded to the jury by, inter alia, (1) rereading the instruction that provided guidance in
completing the verdict form, and (2) indicating to the jury that it could review other jury
instructions for guidance in answering the questions on the verdict form.
Lord contends the trial court committed error by failing to respond directly to the
jury’s query by rereading the relevant instruction about the risk-benefit test, CACI No.
1204. He argues that this error was prejudicial in that, given the jury’s inclination stated in
its question to find liability, there was a reasonable probability that but for the court’s error,
he would have received a favorable jury verdict.
We conclude that there was no error, and we will affirm the judgment.
2
I. FACTUAL BACKGROUND
A. Factual Summary
1. The Accident
After a career in the navy, Lord began working as a commercial pilot in 1995. He
remained in that occupation until his accident in January 2018.
Lord testified that he began riding bicycles when he was eight years old. He rode
more frequently when he was in his early 20’s and used cycling as his main form of exercise
in his 30’s. From his early 20s forward, he always wore a protective helmet while riding a
bicycle. Lord testified that he always wore his helmet correctly: “Level with the head, ear
level, with the chin strap buckled, and the adjustment in the back secured.” His custom was
to check to make sure the helmet was secured properly by determining he could not fit too
many fingers under the strap. Lord said he “would not feel safe” wearing a bicycle helmet
loosely, as Bell contended occurred at the time of the accident.
Lord recalled nothing from the day of the accident on January 12, 2018. The two
eyewitnesses who testified, a retired married couple, did not witness the accident; rather,
they had been walking in the area and first observed Lord lying prone on his left side next to
his bicycle. They observed that Lord’s feet were still attached to the pedals of the bicycle.
The two eyewitnesses testified that Lord was wearing a helmet while lying on the
ground, and that it appeared to have been “in proper position” and not tilted or rotated on his
head. A fireman/paramedic who treated Lord at the scene testified that Lord was wearing a
helmet and that it was in a proper position, not “tilted or rotated in any way.” When Lord’s
helmet was removed by paramedics at the scene, its chinstrap was not loose.
2. Lord’s Injuries
Lord sustained extensive injuries in what the defense medical expert described as “a
violent accident” in which he “fractured a number of structures … [and sustained] some
very significant soft tissue injuries on the left side of his body overlying the left hip.” He
3
suffered eight left-sided fractures to his ribs, a partially collapsed left lung, and a fractured
left iliac wing of his pelvis.
The most serious injuries were to Lord’s head. He sustained a comminuted
(multiple-part) skull fracture on the “higher part” of his left temporal bone, close to where
the parietal bone begins higher up in the skull.2 Associated with the skull fracture was “a
large left epidural hematoma which was causing pressure on the brain which caused … the
midline of his brain … being shifted to the other side.” Lord’s neurosurgeon described it as
“a left-sided big epidural hematoma that involved the frontal parietal and temporal lobes.”
The source of the bleeding was the middle meningeal artery; the artery starts from behind
the eye socket and has multiple branches that feed the brain. Additionally, Lord had a
“macerated, dirty cut” on the left side of his scalp.
An emergency craniotomy was performed on Lord by Dr. Al Shamy on the day of
the accident to address his head injuries. This surgery included cauterizing all active
internal bleeding, removing blood clots, repairing the skull fracture
Lord was in a coma for approximately one month. After his discharge from the
intensive care unit of a hospital in Houston, Lord was transferred to an inpatient
rehabilitation facility for ongoing physical, occupational, and speech therapy. He was
discharged from the rehabilitation facility in late April 2018.
Upon discharge from the rehabilitation facility, Lord—according to the testimony of
Lord’s neurosurgeon expert, Dr. Aroun Amar—remained with “many, many different
impairments that [were] really the result of his brain injury”; Dr. Amar characterized them
as “severe.” The residual impairments included problems with memory, attention span,
visual processing, and alexia (inability to read). Lord testified that his residual injuries
2
The temporal bone is the thinnest bone in the skull and is thus more susceptible to
fractures. Although Lord’s treating neurosurgeon, Dr. George Al Shamy, did not have a
specific recollection of the operation, he testified that it was probably true that the fracture
of the temporal bone extended upward in the skull to a fracture of the parietal bone.
4
include balance issues, loss of hearing in his right ear, vision impairment in his right eye,
cognitive difficulties, and limitations on his ability to communicate.
3. Bicycle Helmet Evidence
James Green, Lord’s forensic engineering expert—who testified to having 47 years
of experience as a forensic engineer reconstructing bicycle accidents that included helmet
impact issues—testified that Lord sustained his injuries by falling from his bicycle onto his
left side with impact to the left side of his helmeted head. Side falls from bicycles represent
the majority in accidents not involving motor vehicles. It is a type of fall for which a
bicycle helmet is designed to provide protection.
Green testified that the two components of a bicycle helmet are the interior expanded
polystyrene or foam liner (EPS) and the outer hard shell. The outer shell helps keep the EPS
together if there is impact. The smooth outer shell reduces the coefficient of friction so that
upon impact with the ground, the helmet slides on the pavement. The EPS, by contrast, will
“stick to the asphalt.” The shell also helps to dissipate the force of the impact to the head.
Green explained that the helmet worn by Lord was comprised of these two
components. However, the shell ended at the lower portion of the helmet (below the Bell
logo) and the exposed EPS continued downward. Green opined that the point of impact
when Lord fell was in the lower, EPS-only portion of the helmet; in that area, the EPS had
broken off upon impact. Green performed drop testing with an exemplar helmet comparing
results where the respective points of helmet impact were above where the shell started and
below the shell where there was only EPS. He concluded that the EPS-only area provided
little protection compared with the area covered by the hard shell. Green testified that the
measurable force found from the tested drop in the EPS-only area of the helmet “puts too
much force of impact on the head.” Green opined further that the area of Lord’s helmet that
failed could, and should, have been covered with a hard shell. In addition, the hard shell
should have extended downward on the helmet to provide adequate protection to the user in
the event of a side fall. This would have been the “safer alternative.” He also testified that
5
there were other helmets available at the time, including one manufactured by Bell, that
were designed with the hard shell covering in the EPS-only location of Lord’s helmet.
Lord’s expert, Dr. Amar, similarly testified that Lord’s was a “lower-velocity” side
fall accident. He opined that, based upon his experience, the type of severe traumatic brain
injury that Lord sustained was uncommon to a person wearing a helmet who had fallen
sideways off a bicycle. Dr. Amar noted that a large section of EPS was missing from the
left side of Lord’s helmet, and this portion of detached foam had covered “the regions of the
skull that [were] directly impacted and contributed to the skull fracture.” Dr. Amar opined
that “the impact was to the helmeted skull, and … that produced the skull fracture because
the helmet failed to protect his head in that region.”
Bell’s mechanism of injury expert, Dr. Elizabeth Raphael, testified that Lord
sustained injuries to the left side of his body, including his head. Her opinion was founded
upon the theory that Lord had not properly used his bicycle helmet. Dr. Raphael opined that
Lord experienced “a single impact to his helmeted head. That impact was partially on his
head and partially on the helmet, so that means that a portion of his head directly impacted
the pavement.” Dr. Raphel explained her opinion: “The actual retention system on Mr.
Lord’s helmet was not properly adjusted for his head. And because of that, his helmet was
able to displace on his head at the time of impact. [¶] Had the helmet and the retention
system been properly adjusted to his head so that the helmet stayed on his head, the helmet
would have attenuated the forces of the impact, and he would not have sustained the skull
fracture, the middle meningeal artery branch lacerations, or the epidural hematoma resulting
in the brain injury. And the helmet fracture did not cause or contribute to his brain
injuries.”3
3
Green expressed disagreement with Bell’s theory that Lord’s head injuries were
caused by failing to secure his helmet properly, resulting in the helmet, immediately before
the fall, rotating and causing exposure to the left side of his head. Green testified he had
never seen this occur in his 47 years as an engineer reconstructing bicycle accidents. Green
6
Bell’s engineering expert, Dave Thom—concurring with Dr. Raphael—testified that
there was a single impact to Lord’s head and that this included a direct impact of his head to
the pavement because the helmet shifted prior to impact. This shifting, Thom opined, was
due to Lord having not properly secured the helmet, which Thom described as a “loose
retention system.”4
II. PROCEDURAL BACKGROUND
On December 2, 2019, Lord filed a complaint against Bell, which he later amended.
In the first amended complaint (complaint), Lord alleged four causes of action, negligence,
two claims for strict products liability (design defect and failure to warn), and breach of
implied warranty. Lord alleged that on January 12, 2018, he was involved in a collision that
caused him to fall over while riding his bicycle. He sustained “serious and life-altering
injuries” resulting from the Bell Ukon FS Helmet he had purchased having failed to protect
his head from such injuries. Lord alleged further that the helmet was defective in that it
“was designed to leave a significant amount of expanded polystyrene (‘EPS’) exposed from
the molded polycarbonate shell. Without the protection of the shell, the EPS became brittle
during the collision and broke instead of protecting Plaintiff LORD’s head. Defendant
Bell’s design should have reinforced the EPS with the molded shell, allowing the EPS to
remain strong and able to protect Plaintiff from serious injury.”
Bell answered the complaint.
The case proceeded to jury trial that commenced on April 15, 2024. Before verdict,
Lord withdrew three of his claims; the case was submitted to the jury on Lord’s claim for
performed a test and concluded that, even with the chin strap cut off, this scenario was
impossible to create.
4
On cross-examination, Thom acknowledged that assuming Lord had worn the
helmet properly—which Thom opined was not the case—then it would be proper to
conclude that his helmet did not do what it was designed to accomplish, namely, to provide
“limited protection” to portions of the head it covered. During the rebuttal phase of the trial,
Lord again emphasized that he had secured the helmet properly on the day of the accident,
and that defense depictions to the contrary were incorrect and “degrading” and “a mockery.”
7
strict liability—design defect. A verdict was rendered in favor of Bell on May 22, 2024.
The jury answered “No” to the first question of the special verdict form reading: “Was the
helmet misused after it left Bell’s possession in a way that was so highly extraordinary that
it was not reasonably foreseeable to Bell?” But after answering this question in a manner
favorable to Lord—and after skipping the second question as instructed—the jury answered
“Yes” to Question 3, which read: “Did the benefits of the helmet’s design outweigh the
risks of the design?” Pursuant to the instructions in the verdict form, the jury skipped the
remaining questions concerning liability and damages and signed and returned the form. A
judgment on the special verdict was filed on August 9, 2024.
Lord filed alternative motions for JNOV or for new trial, which included declarations
from two of the jurors. (These declarations are discussed in detail, post.) Bell opposed the
motions, including the filing of a separate pleading objecting to the two juror declarations.
The court denied Lord’s alternative motions for JNOV/new trial on October 25, 2024. Lord
filed a notice of appeal from the judgment on November 13, 2024.5
5 Lord states in his notice of appeal that it is from the judgment entered August 8
[sic], 2024. The appeal notice contains no reference to the order denying the alternative
JNOV/new trial motions. An order denying new trial is not directly appealable but may
considered in an appeal from the underlying judgment. (Walker v. Los Angeles County
Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) In contrast, an order
denying a JNOV motion is directly appealable. (§ 904.1, subd. (a)(4); see Sweatman v.
Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 (Sweatman).) Therefore, to the
extent that the postjudgment order of October 25, 2024, denied Lord’s JNOV motion, he
should have expressly designated the order in his subsequent notice of appeal. (See
Sweatman, supra, at p. 68.) Since Lord’s notice of appeal does not reference the order
denying the JNOV motion and he submits no argument challenging that ruling, we will not
address the order denying the JNOV motion.
8
III. DISCUSSION
A. Claim of Error in Responding to Jury Question
1. Products Liability: The Risk-Benefit Test
To establish a design defect in a products liability case, two alternative tests may be
utilized. “First, a product may be found defective in design if the plaintiff establishes that
the product failed to perform as safely as an ordinary consumer would expect when used in
an intended or reasonably foreseeable manner. Second, a product may alternatively be
found defective in design if the plaintiff demonstrates that the product’s design proximately
caused his injury and the defendant fails to establish, in light of the relevant factors, that, on
balance, the benefits of the challenged design outweigh the risk of danger inherent in such
design.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432 (Barker).) “Whether
the jury should be instructed on either the consumer expectations test or the risk/benefit test
depends upon the particular facts of the case. [Citation.]” (Saller v. Crown Cork & Seal
Co., Inc. (2010) 187 Cal.App.4th 1220, 1233.) We are concerned here with the second test.
The California Supreme Court has explained the risk-benefit test as follows: “[A]
product may be found defective in design, even if it satisfies ordinary consumer
expectations, if through hindsight the jury determines that the product’s design embodies
‘excessive preventable danger,’ or, in other words, if the jury finds that the risk of danger
inherent in the challenged design outweighs the benefits of such design. [Citations.]”
(Barker, supra, 20 Cal.3d at p. 430, fn. omitted.) In assessing the adequacy of the product’s
design under this test, “a jury may consider, among other relevant factors, the gravity of the
danger posed by the challenged design, the likelihood that such danger would occur, the
mechanical feasibility of a safer alternative design, the financial cost of an improved design,
and the adverse consequences to the product and to the consumer that would result from an
alternative design.” (Id. at p. 431; see also Chavez v. Glock, Inc. (2012) 207 Cal.App.4th
1283, 1308.)
9
Under the risk-benefit test, if the plaintiff makes a prima facie showing that he or she
was injured as a proximate result of the design of the product, the manufacturer then bears
the burden to prove “that the utility of the challenged design outweighs its dangers.
[Citation.] … [P]lacement of the risk-benefit burden on the manufacturer is appropriate
because the considerations which influenced the design of its product are ‘peculiarly within
… [its] knowledge.’ [Citation.] Furthermore, … ‘fundamental policies’ … dictate that a
manufacturer who seeks to escape design defect liability on risk-benefit grounds ‘should
bear the burden of persuading the trier of fact that its product should not be judged
defective. …’ [Citation.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 571, fn. 8
(Soule), quoting Barker, supra, 20 Cal.3d at pp. 431–432.) As the Supreme Court has
explained further, “Barker allows the evaluation of competing designs, but it does not
require proof that the challenged design is the safest possible alternative. The manufacturer
need only show that given the inherent complexities of design, the benefits of its chosen
design outweigh the dangers.” (Soule, supra, at p. 571, fn. 8.)
2. Background
As discussed in greater detail below, Lord contends that the trial court, in response to
a question by the jury, should have reread the instruction based on CACI No. 1204, which
explained the risk-benefit test. That instruction, as read by the trial court, provided that if
Lord established that he was injured and that the design of the Bell helmet was a substantial
factor in causing that injury, then the jury should find for Lord, “unless Bell proves the
benefits of the helmet’s design outweigh the risks of the design,” based upon consideration
of five specific factors “and other relevant factors.”6
6
During closing argument, Lord’s counsel specifically addressed the risk-benefit test,
indicating: “If we prove that [Lord wore the helmet properly], then your decision has to be
for Mr. Lord unless … Bell, can prove to you that the benefits of the bicycle helmet’s design
outweigh [its] risks. [¶] Bell needs to come and tell you, here is why we didn’t put shell
there. That is Bell’s burden. And they have given you nothing.” The entire instruction
(CACI No. 1204)—tracking the risk-benefit factors enunciated in Barker, supra, 20 Cal.3d
at pages 431 to 432—read by the court stated: “Mr. Lord claims that the bicycle helmet’s
10
The record shows there was no disagreement between the parties that the jury should
be given a risk-benefit instruction based on CACI No. 1204. During a conference with
counsel, the court noted that the parties had agreed that CACI No. 1204 would be read to the
jury, but that the parties had submitted their own versions of the precise instruction. The
court read to the jury the version of CACI No. 1204 that had been proposed by Lord’s
counsel. And because it felt it had misspoken in the first reading, the trial court read CACI
No. 1204 to the jury a second time.
The trial court provided the jury with a copy of all instructions for its deliberations.
As part of its instructions, the trial court advised the jury that if the “jurors … need[ed]
further explanation about the laws that apply to the case,” any questions should be submitted
in writing to the court; after conferring with counsel, the court would then do its best to
answer the questions.
During the third day of deliberations, the jury submitted a query which read in full as
follows: “Question for the Judge. In regard[] to the jury answer form, what should a juror
do if they feel the answer to question number 3 is yes, but Bell still has some liability? As
the answer form is written, that is not possible.” The trial court indicated to counsel that its
planned response was to reread CACI No. 5012 (i.e., introduction to special verdict form),
and read a caselaw annotation from that instruction stating that for a 12-person jury, it is
sufficient if any nine jurors agree to each question on the special verdict form. The court
design caused harm to him. [¶] To establish this claim, Mr. Lord must prove all of the
following:· One, that he was harmed; and, two, that the bike helmet’s design was a
substantial factor in causing harm to him. [¶] If Mr. Lord has proved these facts, then your
decision on the claim must be for Mr. Lord unless Bell proves the benefits of the helmet’s
design outweigh the risks of the design. [¶] In deciding whether the benefits outweigh the
risks, you should consider the following: A, the gravity of potential harm resulting from the
risk of the bicycle helmet; B, the likelihood that this harm would occur; C, the feasibility of
an alternate design at the time of the manufacture; D, the cost of an alternative design; E, the
disadvantages of an alternative design, and other relevant factors.”
11
indicated it also intended to give each juror a copy of the special verdict form for the juror’s
own use.
Lord’s counsel requested that the court reread to the jury the risk-benefit instruction
because it was the source of Question 3 of the verdict form. Counsel argued that the jury,
from its query, might have “some confusion about liability with regard to the risk-benefit
test” and it would not “hurt” if the risk-benefit instruction were reread to the jury. Lord’s
counsel reiterated that the jury’s query demonstrated it did not understand the risk-benefit
test and that it would be appropriate to “instruct [the jury] where the law could be found so
that [it could] answer [the jury form] properly.”
Bell’s counsel disagreed, arguing that it would be improper for the court to reread the
risk-benefit instruction to the jury. He asserted that, in its query, the jury did not ask for an
explanation of Question 3 on the verdict form, and it did not express any confusion about
that question. Bell’s counsel argued further that “it would be inappropriate … to read [the
jury] an instruction [it was] not asking for. … [T]here is no indication [the jury does not]
understand the risk-benefit test.”
After considering both arguments, the trial court ruled that it would proceed as it
initially proposed. But the court indicated it would also advise the jury that it could consult
the other jury instructions in answering any question on the verdict form. The court then
instructed the jury in response to its query by: (1) rereading CACI No. 5012 that provides
an explanation of the procedure the jury should follow in completing the verdict form; (2)
advising the jury that there is caselaw holding that “[w]hen a jury is composed of 12
persons, it is sufficient if any nine jurors arrive at each [special] verdict regardless of the
juror’s votes on other special verdict questions”; (3) indicating the court would provide each
juror with a copy of the verdict form for his or her personal use, but that the court would
12
ultimately read only the foreperson’s verdict form; and (4) stating that in answering each
question on the verdict form, the jury could consult other instructions for guidance.7
3. Standard of Review
As discussed, post, Lord argues that the trial court was required to respond to the
jury’s inquiry about “[a] point of law arising in the cause” (§ 614) by rereading CACI No.
1204. He asserts the court’s error in failing to so respond to the jury’s inquiry should be
reviewed de novo, citing authority applying this standard to review for instructional error.
(See, e.g., People v. Manriquez (2005) 37 Cal.4th 547, 584 [independent review of claim of
error in failing to give instruction on the lesser included offense of voluntary manslaughter
in capital murder case].)
We disagree. This is not an instructional error case. A claim that the trial court erred
in its actions taken in response to jury’s inquiry during deliberations is reviewed for abuse
of discretion. (See People v. Eid (2010) 187 Cal.App.4th 859, 882 (Eid).)8
7
The parties agreed to the trial court’s inclusion of CACI No. 5012 as part of the
instructions. As reread by the court to the jury, CACI No. 5012 provides: “I will give you a
verdict form with questions you must answer. I have already instructed you on the law that
you are to use in answering these questions. You must follow my instructions and the forms
carefully. You must consider each question separately. Although you may discuss the
evidence and the issues to be decided in any order, you must answer the questions on the
verdict forms in the order they appear. After you answer a question, the forms tell you what
to do next. [¶] At least [nine] of you must agree on an answer before you can move on to
the next question. However, the same [nine] or more people do not have to agree on each
answer. [¶] All 12 of you must deliberate on and answer each question regardless of how
you voted on any earlier question. Unless the verdict form tells all 12 jurors to stop and
answer no further questions, every juror must deliberate and vote on all of the remaining
questions. [¶] When you have finished filling out all of the forms, your presiding juror must
write the date and sign it at the bottom of each form of the last page and then notify the
bailiff that you are ready to present your verdict in the courtroom.”
8
Eid concerned the trial court’s response to a jury’s request for information about a
point of law under Penal Code section 1138. While we are unaware of any published
authority addressing the standard for reviewing a claim that the trial court erred under (Code
of Civil Procedure) section 614, the language of the two statutes are, in all material respects,
nearly identical. Therefore, we perceive of no reason why the abuse of discretion standard
13
4. Discussion—Response to Jury’s Inquiry
Lord argues on appeal that, in response to the jury’s inquiry, the “court failed to act
to clarify the law for the jury, even in the face of its expressed confusion and the express
request of Lord’s counsel.” He contends that from its query, the jury expressed “confusion
[that] manifestly arose from … an inability to understand how the risk[-]benefit test
applied.” Lord argues, therefore, that because the jury “was manifestly confused about how
to apply the risk-benefit test” and “sought guidance from the trial court,” its failure to
provide such guidance constituted reversible error.9
The foundation of Lord’s argument is that through its query about Question 3 of the
verdict form, the jury expressed that it was confused about how it should apply the risk-
benefit test in this case. Because of that confusion, Lord contends, it was incumbent upon
the trial court to give further instructions concerning the test by rereading CACI No. 1204.
This analysis is flawed because its central tenet does not withstand scrutiny.
Referring to the verdict form, the jury asked the court, “[W]hat should a juror do if
they feel the answer to question number 3 is yes, but Bell still has some liability? As the
answer form is written, that is not possible.” The jury’s query did not express that it was
confused about the instruction explaining the risk-benefit test, CACI No. 1204. The jury did
not state that it found this, or any other instruction, hard to follow. From its query, the jury
did not ask the court to reread or explain CACI No. 1204. And—without mentioning that
instruction specifically—the jury did not ask the court to clarify or explain the law
would not apply to civil proceedings governed by section 614, as well as in criminal
proceedings under Penal Code section 1138.
9
Lord also argues at some length “that the typical formulations of the … risk-benefit
test … are difficult to comprehend and confusing to jurors.” But Lord agreed to the court’s
giving the risk-benefit instruction and it was his version of CACI No. 1204 that was read by
the court. Further, Lord did not argue below that the risk-benefit test was confusing, nor did
he propose any language to address any specific, supposedly confusing aspects of the
instruction. (Cf. Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 50 [“party cannot
attack the substance of an instruction if he himself proposed similar instructions”].)
14
concerning the risk-benefit test. At most, the jury’s question might be construed as an
expression of some uncertainty about how to complete the special verdict form. Any such
uncertainty would implicate a different instruction, CACI No. 5012, which explained the
process the jury was required to follow when it answered the verdict form. The trial court
specifically addressed this issue by rereading for the jury CACI No. 5012 and by reading a
caselaw annotation from that instruction.10
Lord contends that because of the jury’s “implicitly expressed confusion about the
risk-benefit test,” “the trial court should have, at the very least, redirected the jury’s
attention specifically to CACI 1204. …”11 Lord cites section 614 and several cases which
he contends required the trial court to provide this guidance concerning the law to the jury.
Section 614 provides that the trial court shall give information—portions of
testimony or explanation of an issue of law—that the jury, during its deliberations, indicates
that it requires.12 The statute provides that if the jury “desire[s] to be informed of any point
of law arising in the cause,” “the information required must be given.” (§ 614.) “The
requirements of [§ 614], phrased in mandatory language, must be strictly complied with.
10
We have addressed Lord’s claim that the trial court erred by failing to reread CACI
No. 1204 to address the jury’s purported confusion about the risk-benefit test without giving
consideration to the two juror declarations submitted by Lord in support of his new trial
motion. As we conclude (see pt. II.B., post), the juror declarations—as the trial court
correctly held—were inadmissible.
11
On several occasions in his opening brief, he argues or suggests that the trial court
should have done more than reread for the jury CACI No. 1204, such as utilize caselaw to
provide additional explanation of the risk-benefit test. Lord’s claim is without merit. Aside
from the fact that the jury did not express confusion about the test or request any
clarification about it, Lord’s counsel did not ask the trial court to do anything more than
reread CACI No. 1204 to the jury.
12
Section 614 reads: “After the jury have retired for deliberation, if there be a
disagreement between them as to any part of the testimony, or if they desire to be informed
of any point of law arising in the cause, they may require the officer to conduct them into
court. Upon their being brought into court, the information required must be given in the
presence of, or after notice to, the parties or counsel.”
15
[Citation.]” (Asplund v. Driskell (1964) 225 Cal.App.2d 705, 712.) As has been explained:
“Trial courts are duty bound to give supplemental instructions if additional guidance is
necessary to give the jury ‘ “a full and complete understanding of the law applicable to the
facts” ’ [citations, including § 614], but those supplemental instructions—like all jury
instructions—must correctly convey the law [citations].” (Flores v. Liu (2021) 60
Cal.App.5th 278, 289.)
We conclude that section 614 offers no support for Lord’s position that the trial court
erred. The court’s duty to provide the jury with “the information required” is triggered by
the jury’s indication during deliberations that it “desire[s] to be informed of any point of
law.” (Ibid.) Here, as discussed, the jury in its question did not state a wish that it be
informed further on a point of law relating to either the benefit-risk test or to the instruction
(CACI No. 1204) describing that test. Further, even if the jury’s query could be properly
construed as a desire to be informed on the law concerning the risk-benefit test—which
construction, we have concluded, would not be a reasonable one—the trial court did inform
the jury about the test by advising it that it could consider the instructions previously given
(which included CACI No. 1204) in answering the questions in the verdict form. (See
People v. Beardslee (1991) 53 Cal.3d 68, 97 [although “court has a primary duty to help the
jury understand the legal principles it is asked to apply. … [, t]his does not mean the court
must always elaborate on the standard instructions”].)
Lord cites Kumelauskas v. Cozzi (1961) 191 Cal.App.2d 572 (Kumelauskas) to
support his position that the trial court should have reread CACI No. 1204. He states that
under that authority, “the mere rereading of instructions previously given, upon [the] jury’s
request for explanation, is not error.” Kumelauskas does not support Lord’s claim of error.
In that case, the appellate court rejected appellant’s claim that the trial court had erred by
16
rereading an instruction concerning a particular statute about which “[t]he jury [had]
requested further advice.” (Kumelauskas, supra, at p. 575.) Here, however, there was no
request by the jury to reread CACI No. 1204. We conclude therefore that the trial court did
not abuse its discretion by refusing Lord’s request to reread that instruction.13
Additionally, Lord relies on Davis v. Erickson (1960) 53 Cal.2d 860. In Davis,
during deliberations, the jury asked the court to reread instructions concerning negligence
and assumption of the risk; the jury later expanded that request to include rereading all
instructions pertaining to negligence. (Id. at pp. 861–862.) The trial court inadvertently
omitted three instructions on negligence and proximate cause, but when the appellant called
the issue to the court’s attention, it refused to reread the three omitted instructions. (Id. at p.
862.) The problem was compounded when the trial court, after rereading the instructions
(except the three omitted ones), specifically told the jury it had “ ‘read all the instructions
pertaining to negligence and … pertaining to the doctrine of assumption of risk,’ ” and it
then asked whether the jury needed the rereading of any other instructions reread. (Id. at p.
862) The jury returned a verdict for the defense. (Id. at p. 861.) The Supreme Court
reversed, concluding that “[t]he omission of [one of the three] instruction[s] … in the
rereading to the jury struck at the heart of appellant’s case” and constituted prejudicial error.
13
Similarly, Lord’s reliance on Ramona Manor Convalescent Hospital v. Care
Enterprises (1986) 177 Cal.App.3d 1120 is misplaced. There, the trial court reread or
provided copies of three instructions to address the jury’s query during deliberations about
the word “ ‘intentionally’ ” in the context of a special verdict question asking if the
defendant had intentionally interfered with the plaintiff’s contractual relations. (Id. at p.
1136.) The court in Ramona Manor held that this response to the jury’s inquiry was
appropriate: “It is, of course, settled in California that no error arises from a court’s choice
to reread instructions in response to jury requests for further information, so long as the
original instructions themselves do not constitute incorrect statements of law. [Citation.]”
(Id. at pp. 1136–1137, citing Kumelauskas, supra, 191 Cal.App.2d at p. 575.) Here, there
was no request by the jury for further information about the risk-benefit test that would have
warranted the trial court’s rereading of CACI No. 1204.
17
(Id. at pp. 862–863.) Davis is distinguishable. Its facts—including the existence of a
specific jury request to reread the applicable instructions, the court’s unintentional omission
of three instructions that should have been included in the rereading, and the court’s refusal
to rectify that omission—bear little resemblance to the present case.
Lastly, Lord relies extensively on Bartosh v. Banning (1967) 251 Cal.App.2d 378
(Bartosh). In that case, the plaintiff, a bystander, was injured during a barfight between two
patrons, and she sued the two participants and the bar. (Id. at pp. 381–383.) A key issue
was whether one of the participants in the fight (Banning), who was sued for negligence and
claimed self-defense, had acted with reasonable care to avoid the bystander’s injury. (Id. at
p. 385.) Although the court instructed the jury on negligence issues, including Banning’s
bearing the burden of proving he acted in self-defense and in establishing the plaintiff’s
contributory negligence, it did not give an instruction on Banning’s duty of care to avoid the
plaintiff’s becoming injured during the fight. (Id. at p. 386.) After brief deliberations, the
jury returned with two questions: “ ‘One, is proof of negligence determined only by proof
of who started the fight? Two, if not, by prudent action he could avoid the fight and did not,
was he negligent?’ ” (Id. at p. 387.) The trial court refused to provide further instruction to
the jury. (Ibid.)
The appellate court reversed. Inferring from the jury’s questions that “the jury [had
been] left in a state of confusion as to the law applicable to the rights and duties of Banning”
(Bartosh, supra, 251 Cal.App.2d at p. 386), the appellate court concluded the trial court,
under the circumstances, had failed to perform its duty to further instruct the jury to address
its questions (id. at p. 387). The Bartosh court reasoned: “Where the trial court has given
instructions which are inadequate, or are so scanty as to leave the jury without a full
understanding of the law applicable to the case, and this lack of understanding is brought to
18
the attention of the court by the jury’s request for further guidance, it … was … incumbent
on the trial court to give instructions on all the vital issues in the case so that the jury would
have a full and complete understanding of the law applicable to the facts.’ [Citation.] ‘The
responsibility for adequate instruction becomes particularly acute when the jury asks
specific guidance.’ [Citation.]” (Ibid.)
Bartosh is distinguishable. Here, there is no indication that “the trial court ha[d]
given instructions which [were] inadequate, or [were] so scanty as to leave the jury without
a full understanding of the law applicable to the case.” (Bartosh, supra, 251 Cal.App.2d at
p. 387.) Unlike Bartosh, the court did not omit rereading a significant instruction that had
been requested by the jury. Thus, although the court has a duty to instruct the jury on “ ‘all
the vital issues in the case’ ” (ibid.), there is no indication here that the trial court failed to
satisfy that obligation. It is undisputed that the trial court properly instructed on the risk-
benefit test. Indeed, unlike in Bartosh, Lord makes no claim that additional instruction was
necessary, only that the trial court should have reread an adequate instruction previously
given. Nor was it irrational for the trial court to have understood the jury note as requesting
specific guidance only on how to complete the verdict form and not on a particular point of
law. Lord explains neither how Bartosh could support reversal without a request for
instruction on the law, nor how the rereading of CACI No. 1204 would have addressed the
jury’s purported confusion about that instruction he contends was evidenced by its note.
Bartosh therefore offers no support for Lord’s claim of error.14
14
Lord asserts that Bartosh offers support for his position that “[t]he trial court
should have sought more information from the jury by questioning the foreperson to
determine what the problem was and should have provided the guidance the jury requested.”
This position was not raised by Lord at the time the trial court was required to address the
jury’s inquiry. His counsel did not suggest that the court should ask the foreperson
questions about the jury’s query. Counsel’s argument was confined to urging that the trial
court reread CACI No. 1204.
19
The jury’s query concerning the special verdict form did not evidence (1) the jury’s
confusion about the risk-benefit test, (2) an expression of the jury’s “desire to be informed
of any point of law” concerning that test (§ 614), or (3) a stated need by the jury for a
rereading of CACI No. 1204. The trial court was under no obligation to reread that
instruction. (See Gray v. Wagner (1969) 272 Cal.App.2d 671, 672 [“party is not entitled as
a matter of right to have instructions re-read which were not requested by the jury”].) The
court did not abuse its discretion in rejecting Lord’s request to reread CACI No. 1204 or by
failing to provide further guidance—not requested by Lord—to the jury concerning the risk
benefit test. (See Eid, supra, 187 Cal.App.4th at p. 882.)15
B. Motion for New Trial: Juror Declarations
1. Procedural Background
Lord asserted in his posttrial motions that the trial court erred in failing to instruct the
jury concerning the risk-benefit test in response to the jury’s query during deliberations, and
that the failure to address the jury’s “confusion” about the test warranted the granting of a
new trial.16 In asserting this position, Lord relied substantially upon the declarations of two
jurors (detailed below).
The trial court, in denying the new trial motion, rejected the challenge by Lord,
concluding that it had responded appropriately to the jury’s inquiry about the completion of
the verdict form. In reaching its decision, the court ruled that the substance of the two juror
15
Because we find no error with respect to the trial court’s response to the jury’s
inquiry during deliberations, we need not address the arguments by the parties on whether
the claimed error was prejudicial. (See Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 845, fn. 5 [appellate courts will not address issues whose resolution is
unnecessary to the disposition of the appeal].)
16
Lord raised several other claims of trial court error in his posttrial motion for new
trial. Lord does not assert these additional matters on appeal. Therefore, he has abandoned
any challenge concerning those other claims. (See Tiernan v. Trustees of Cal. State
University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)
20
declarations were inadmissible because “the statute [Evidence Code § 1150] and caselaw
specifically prohibit a court from considering jurors’ confusion or misunderstanding of the
law, or how they read or interpreted jury instructions.”
2. Admissibility of Juror Declarations
a. The Declarations
Lord submitted in his posttrial motions the declarations of Juror V.L. and Juror J.M.
Juror V.L. declared that “[a]ll members of the jury felt that Mr. Lord was entitled to
economic compensation due to the injuries he suffered because the helmet failed to protect
Mr. Lord. [¶] However, the jury ultimately found for [Bell] because the jury believed that
short of having a paper bag on your head any protection would be better than none. In other
words, the jury concluded that wearing a helmet that did not work was better than no helmet
at all. [¶] For this reason, the jury attempted to obtain guidance from the Court regarding
how to apply the risk-benefit test.” Juror V.L. stated further: “Had the Court addressed the
jury’s question regarding the risk-benefit test, I believe that the jury verdict would have
been in favor of Mr. Lord.” And Juror V.L. stated her personal beliefs that “[1] the jury
verdict in this [case] was a miscarriage of justice … [2] no member of the jury felt that the
jury verdict was the right one … [and 3] the jury reached a verdict in favor of Bell due to its
misinterpretation of the risk-benefit test.”
Juror J.M. stated in his declaration that after the jury concluded that there had been
no misuse of the helmet, it proceeded to answer Question 3 on the verdict form, namely,
“whether the benefits of the helmet’s design outweighed the risks of the design. During
their deliberation, the jury felt that the answer to that question was yes. However, the jury
still felt that Bell might have had some liability. For that reason, the jury submitted a
question to the Court in an effort to clarify if this was the correct application of the risk-
benefit test.” Juror J.M. declared further that “[h]owever, the Court’s response signaled to
the jurors that the Court was unwilling to provide the jury with further guidance regarding
the risk-benefit test and that the jury should issue its verdict.”
21
b. Standard of Review
A ruling by the trial court on a new trial motion is reviewed for abuse of discretion.
(See Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152
Cal.App.4th 720, 752.) And, specifically as to the juror declarations submitted by Lord, a
trial court’s ruling on the admissibility of evidence in connection with a new trial motion is
reviewed for abuse of discretion. (See Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345
(Barboni).)17
c. Discussion
The general principle that applies to the admissibility of the two juror declarations
proffered by Lord has been summarized: “Evidence of jurors’ internal thought processes is
inadmissible to impeach a verdict. [Citations.] Only evidence as to objectively
ascertainable statements, conduct, conditions, or events is admissible to impeach a verdict.
[Citations.] Juror declarations are admissible to the extent that they describe overt acts
constituting jury misconduct, but they are inadmissible to the extent that they describe the
effect of any event on a juror’s subjective reasoning process. [Citation.] Accordingly, juror
declarations are inadmissible to the extent that they purport to describe the jurors’
understanding of the instructions or how they arrived at their verdict. [Citations.]” (Bell v.
Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124–1125
(Bell).)
Evidence Code section 1150, subdivision (a) makes this distinction between (1)
admissible evidence concerning a verdict’s validity “as to statements made, or conduct,
conditions, or events occurring, either within or without the jury room, of such a character
as is likely to have influenced the verdict improperly,” and (2) inadmissible evidence “to
show the effect of such statement, conduct, condition, or event upon a juror either in
17
Lord argues that the trial court’s ruling on the admissibility of the two juror
declarations is subject to de novo review. He presents no apposite authority in support of
this position, and we find it to be without merit.
22
influencing him [or her] to assent to or dissent from the verdict or concerning the mental
processes by which it was determined.”18 This statute recognizes the “distinction between
proof of overt acts, objectively ascertainable, and proof of the subjective reasoning
processes of the individual juror, which can be neither corroborated nor disproved. …”
(People v. Hutchinson (1969) 71 Cal.2d 342, 349 (Hutchinson).) Further, the “limitation
[on admissibility of evidence under Evid. Code, § 1150] prevents one juror from upsetting a
verdict of the whole jury by impugning his [or her] own or his [or her] fellow jurors’ mental
processes or reasons for assent or dissent. The only improper influences that may be proved
under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the
other senses and thus subject to corroboration. [Citations.]” (Id. at p. 350.)
Thus, for example, in Bell, a products liability (vehicle rollover) case, a motion for
new trial was granted largely based on the declarations of two jurors; the trial court believed
the declarations showed “that the jury was misled by the special verdict question and [the
court’s subsequent] failure to provide proper guidance in response to the jury's question.”
(Bell, supra, 181 Cal.App.4th at p. 1125.) The two declarants described disagreements
during the jury’s deliberations over “the meaning of the term ‘potential risks’ as used in the
first four questions of the Special Verdict Form.’ ” (Ibid.) Both declarants stated that their
understanding of the term involved a particular risk of the vehicle’s occupant striking his or
her head during a rollover, while certain jurors believed the term should be interpreted
broadly. (Ibid.) One of the juror-declarants stated that after sending a question to the court
about the verdict form and receiving the court’s response, the majority of the jury urged that
18 Evidence Code section 1150, subdivision (a) reads: “Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to statements
made, or conduct, conditions, or events occurring, either within or without the jury room, of
such a character as is likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him [or her] to assent to or dissent from the verdict or concerning the
mental processes by which it was determined.”
23
the “ ‘potential risks’ ” term should be interpreted broadly, resulting in a vote change with a
consensus of nine jurors voting to answer a question in the verdict form that resulted in
finding for the defendant on a design defect claim. (Ibid.) The appellate court held that the
declarations were inadmissible because they “reflect[ed] the jurors’ subjective reasoning
processes.” (Id. at p. 1126.)
Similarly, in Ford v. Bennacka (1990) 226 Cal.App.3d 330, the plaintiff—who was
injured in a motorcycle accident and received an adverse judgment on special verdict after a
jury trial—filed a motion for new trial asserting jury misconduct in which he “submitted
declarations of five jurors essentially asserting the jury confused the concepts of
comparative negligence and preponderance of the evidence.” (Id. at p. 332, fn. omitted.)
The trial court denied the motion for new trial and concluded the declarations were
inadmissible because they “pointed ‘to no act or occurrence but appeared to show the mental
processes of the jurors in arriving at the verdict they rendered.’ ” (Ibid.) The appellate
court, in concluding the trial court had properly denied the new trial motion, held: “The
declarations lack objective and verifiable incidents of juror misconduct. [Citations.] … The
declarations do not describe overt acts, statements, or conduct showing the jury intentionally
agreed to disregard applicable law and apply inapplicable law. [Citation.] Instead, the
declarations at most suggest ‘deliberative error’ in the jury’s collective mental process—
confusion, misunderstanding, and misinterpretation of the law.” (Id. at pp. 335–336; see
also Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 325 [four juror
affidavits submitted in support of new trial motion indicating that affiants and fellow jurors
did not understand special verdict form’s reference to “percentage of negligence attributable
to ‘other persons’ ” held inadmissible under Evid. Code, § 1150].)
And in Guernsey v. City of Salinas (2018) 30 Cal.App.5th 269 (Guernsey), the
plaintiff was severely injured after being hit by a truck while crossing a driveway in a faded
crosswalk and sued the City of Salinas for a dangerous condition of public property. (Id. at
pp. 271, 274.) After a defense verdict, the plaintiff appealed, asserting, inter alia,
24
instructional error. (Id. at p. 271.) A panel of this court found that instructional error had
occurred. (Id. at pp. 281–282.) In arguing on appeal that the error was prejudicial, the
plaintiff relied on juror declarations that she had submitted in connection with her motion
for new trial. (Id. at p. 282.) The declarants stated, inter alia, that as they understood the
challenged instructions, they were precluded from finding the existence of a dangerous
condition. (Id. at p. 283.)19 The Guernsey court held that “[n]early all of these statements
were inadmissible because they were reflections of the jurors’ mental processes. ‘ “[W]hen
a juror in the course of deliberations gives the reasons for his or her vote, the words are
simply a verbal reflection of the juror’s mental processes. Consideration of such a statement
as evidence of those processes is barred by Evidence Code section 1150.” [Citation.]’
[Citation.] … [¶] The ‘mental processes’ prohibition applies to juror affidavits conveying
jurors’ statements about their understanding of certain words in instructions. [Citations.]”
(Ibid.)
Plainly, the two juror declarations submitted here by Lord were offered as “proof of
the subjective reasoning processes of the individual juror,” as well as of the jury
collectively, which reasoning processes “can be neither corroborated nor disproved. …”
(Hutchinson, supra, 71 Cal.2d at p. 349.) The wording of Juror V.L.’s declaration—such as
“[a]ll members of the jury felt,” “because the jury believed,” “the jury concluded,” and “the
jury attempted to obtain guidance”—clearly demonstrates expressions about the subjective
reasoning and thought processes of V.L. and V.L.’s fellow jurors. V.L.’s additional
statement that “the jury reached a verdict in favor of Bell due to its misinterpretation of the
19
The declarants’ statements bear some resemblance to the two juror declarations
presented by Lord here. As explained by this court in Guernsey, “The key statements in the
juror affidavits upon which Guernsey relies are: (1) the vote on dangerous condition was
[9] to [3]; (2) a juror changed his vote because he ‘felt outvoted’; … (4) the jury used the
instruction to answer questions 2a and 2b; (5) the jury discussed and “agreed” that the
instruction did not allow them to find a dangerous condition; and (6) some jurors “stated”
that the City was partially responsible.” (Guernsey, supra, 30 Cal.App.5th at p. 283.)
25
risk-benefit test” is an attempt to explain the collective, subjective reasoning for the jury’s
verdict; this is clearly prohibited under Evidence Code section 1150. (See Guernsey, supra,
30 Cal.App.5th at p. 283 [jurors’ statements that “the jury discussed and ‘agreed’ that the
instruction did not allow them to find a dangerous condition” held inadmissible under Evid.
Code, § 1150].) Likewise, Juror J.M.’s declaration is replete with inadmissible statements
concerning J.M.’s and J.M.’s fellow jurors’ subjective reasoning—i.e., “the jury felt,” “the
jury still felt,” “[f]or that reason, the jury submitted,” “in an effort to clarify,” and “signaled
to the jurors.” The two juror declarations were inadmissible under Evidence Code section
1150, subdivision (a).
Lord contends that People v. Engstrom (2011) 201 Cal.App.4th 174 (Engstrom)
supports his position that the two juror declarations are admissible. There, the defendant
was convicted of cultivation of marijuana (Health & Saf. Code, § 11358). (Engstrom,
supra, at p. 177.) A significant issue at trial was whether the defendant’s growing operation
exceeded the limits for medicinal purposes, which, in turn, was based upon the anticipated
yield from the plants. (Id. at 178–179.) The defendant’s expert witness (Browne) presented
a mathematical formula to determine the yield under which the defendant’s operation would
have been permitted. (Id. at 179–180.) After being convicted, the defendant moved for new
trial based on jury misconduct, which the court granted. (Id. at p. 177.) The defendant’s
motion included defense counsel’s declaration, an affidavit from Browne, and an affidavit
from one juror. (Id. at p. 181.) The prosecution objected to most of this evidence, asserting
that it concerned the thought process of the jury. (Id. at p. 182.) The juror, in his or her
declaration, “stated the jurors discussed Browne’s testimony and his calculations. Juror No.
3 [another juror, who] had an engineering background … [,] indicated he disagreed with the
expert’s calculations. … Some jurors suggested the yield should be recalculated … [to
change Browne’s equation]. Juror No. 3 … recalculated the plants’ yield. The new figure
was discussed and applied during deliberations.” (Id. at p. 182.) The trial court, while
acknowledging that “most juror statements are inadmissible, Evidence Code section 1150
26
did not bar statements which are themselves misconduct. … [It] found one juror disagreed
with the defense expert’s method of calculating marijuana yield based on that juror’s
engineering background. It concluded the yield of defendant’s marijuana plants was a key
issue in the case, and by using a ‘new formula,’ one which overstated the yield, the jury
committed prejudicial misconduct. …” (Id. at p. 182.)
The appellate court reversed, concluding that the granting of the new trial based on
jury misconduct was error: “[T]he jurors’ reasonable, commonsense interpretation and
application of the evidence admitted at trial to recalculate defendant’s marijuana garden’s
yield, by substituting a single factor used in an expert witness’s formula, is not juror
misconduct so long, as here, no extrinsic evidence came into play.” (Engstrom, supra, 201
Cal.App.4th at p. 188.) On the question of the trial court’s consideration of the juror
affidavit, the Engstrom court recited that the People challenged the evidentiary rulings and
the trial court’s finding that there was jury misconduct. (Id. at p. 183.) But the People (as
noted by the appellate court), in effect, admitted that the portions of the juror’s affidavit
recited, ante, were admissible because they “were any statements that might constitute
misconduct or statements open to other sources of corroboration such as sight or hearing.”
(Ibid.) The court held that the admission of the juror affidavit was appropriate, reasoning:
“[The] affidavit related Juror No. 3’s express disagreement with Browne’s formulaic
calculation, jurors’ discussion of his testimony, and how jurors came to substitute a factor in
Browne’s formula for calculating marijuana yield. Although some of the affidavit is related
to the jurors’ thought process, it is nonetheless based on external, verifiable conduct and
statements rather than a juror’s internal thoughts left unexpressed until a motion for new
trial.” (Id. at p. 184.)
Here, unlike in Engstrom, the two declarants, Juror V.L. and Juror J.M., were
reporting their own thought processes and reasoning—and collectively and generically, the
entire jury’s thinking and rationale— behind their query to the trial court and their ultimate
completion of the special verdict. The jurors’ statements were not “based on external,
27
verifiable conduct and statements. …” (Engstrom, supra, 201 Cal.App.4th at p. 184.)
Engstrom does not support Lord’s position that the trial court erred in excluding the two
juror declarations.
Lord also relies on Drust v. Drust (1980) 113 Cal.App.3d 1 (Drust). In that
automobile accident case, the driver of the car in which the injured plaintiff was passenger
was sued for negligence, and the plaintiff obtained a $1.436 million jury verdict. (Id. at p.
5.) The appellate court reversed the judgment and remanded the case for a new trial on
damages only. (Id. at p. 11.) It found that in calculating the damage award, “the jury
incorrectly included inconsistent elements of damage.” (Id. at p. 8.) This impropriety was
determined by the Drust court from the affidavits of all twelve jurors, which were submitted
by the plaintiff in posttrial proceedings for other purposes but were relied on by the
defendant in his appeal. (Ibid.) The jurors’ affidavits described the three components of the
jury’s total damage award. (Id. at pp. 8, 10.) While the appellate court acknowledged that
under Evidence Code section 1150, “posttrial solicitation and use of jurors’ statements
concerning their conduct and deliberation and which seek to explain the effect of evidence
on their mental processes is improper,” it held that “use of a juror’s affidavit or declaration
is proper to disclose objectively ascertainable overt acts by the jury. [Citation.]” (Drust,
supra, at p. 9, citing Krouse v. Graham (1977) 19 Cal.3d 59, 80–81.) The court in Drust
held that the juror declarations at issue were “more susceptible of being interpreted as
describing the overt act of awarding a particular sum for a particular element of damage.”
(Drust, supra, at p. 9.)20
20
The dissent in Drust disagreed that consideration of the jurors’ declarations was
appropriate, concluding that they were a reflection of the mental processes of the jury and
thus inadmissible under Evidence Code section 1150. (See Drust, supra, 113 Cal.App.3d at
pp. 12–13; see also Ferreira v. Quik Stop Markets, Inc. (1983) 141 Cal.App.3d 1023, 1034
[“Drust appears to be an anomaly and is inconsistent with the clear language of Evidence
Code section 1150”].)
28
Drust, like Engstrom, offers no support for Lord’s position. The jury’s breakdown of
the damages award was, under the particular circumstances of Drust—in which the matter
was established through declarations from all 12 jurors and where the proponent of the
declarations on appeal was not the party who submitted them to the trial court—an “overt
act[]” that was “objectively ascertainable.” (Hutchinson, supra, 71 Cal.2d at p. 349.) By
contrast, the two juror declarations submitted by Lord were clearly “proof of the subjective
reasoning processes of the individual juror” and of the jury as a whole, “which can be
neither corroborated nor disproved …” (Ibid.)
As the trial court correctly found, the declarations of Juror V.L. and Juror J.M. were
inadmissible as statements “concerning the mental processes by which it was determined”
proscribed by Evidence Code section 1150. Because the declarations “purport[ed] to
describe the jurors’ understanding of the instructions or how they arrived at their verdict”
(Bell, supra, 181 Cal.App.4th at p. 1125), they could not be considered in connection with
Lord’s motion for new trial. The trial court did not abuse its discretion in excluding the
declarations. (See Barboni, supra, 210 Cal.App.4th at p. 345.)21
III. DISPOSITION
The judgment of August 9, 2024, is affirmed. Statutory costs are awarded to
respondent.
21
Lord does not include a discussion identifying which of the seven statutory
grounds justified the granting of the new trial motion. (See § 657.) Since his position that a
new trial should be ordered is founded upon claims that the court erred in its response to the
jury’s query and in its erroneous exclusion of the two jurors’ declarations—both of which
claims we have found to be without merit—we need not address the specific statutory
grounds of section 657.
29
___________________________________________
WILSON, J.
WE CONCUR:
__________________________
GROVER, ACTING P. J.
__________________________
LIE, J.
Lord v. Bell Sports Inc.
H052707